the girl from auntie :: copyright for crafters

All of the forms of intellectual property protection mentioned above include some element of publication. Works protected by copyright are generally available to the public (although recall that a copyright owner has the right to not publish a work). The patent bargain requires disclosure by the patentee in exchange for exclusive rights. Industrial designs are for use on articles, and when an industrial design registration is granted, the public may view the registration. Trade-marks need to be displayed and used in order to maintain protection.

On the other hand, sometimes there is information that doesn’t fit into any of the categories of copyright, industrial design, patent, or trade-mark, or needs to be kept secret because it gives the owner a competitive advantage. Such information may be protected by the owner as confidential information. This is a legal concept that does not require registration.

In order to preserve confidential information or a trade secret, the owner of the information must treat it as confidential. The information must be kept secure. If it is revealed to any other person, it must be done under conditions indicating that the transmission of the information is confidential. The best way to do this is by having the owner and the recipient of the information sign a confidentiality (or “non-disclosure") agreement. Without a signed agreement, in the case of use or misuse of the confidential information, it is more difficult for the owner to prove that terms of confidentiality were in place.

Protecting information as a trade secret can be spectacularly successful (for example, the formula for Coca-Cola; if it had been patented, then anyone could have replicated the formula decades ago) but it has significant limitations. If a third person, who is not bound by any terms of confidentiality, discovers the information, then this third person is at liberty to use it. Had the information been patented (if it were suitable for patenting), then during the life of the patent even this third person would not have been able to use the information.

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Trade-marks

A trade-mark is a slogan, word, design, or symbol which serves to indicate a person’s or business’s goods and services. Some famous trade-marks include PEPSI (a word), McDonald’s golden arches (a symbol), and the shape of a Coke bottle (a shaping of a package). Trade-marks may be registered or unregistered; registration has significant advantages. In either case, the trade-mark must be used as a trade-mark in order to benefit from protection.

A trade-mark is used by being marked on goods or packages of goods that are sold in the normal course of trade. It is not enough to merely advertise the trade-mark; it must actually be applied to the goods or packages at the time of sale. In the case of services, which are intangible products that cannot be marked, it is sufficient to display the mark in performing or advertising the service.

If the owner of a registered trade-mark fails to use the trade-mark properly, then the associated trade-mark rights may be lost.

Registering a trade-mark grants to the trade-mark owner the exclusive right to use the trade-mark in Canada in association with the goods or services for which the trade-mark was registered. Anyone else who does this without consent is infringing the trade-mark. It is also infringement to use a mark that is confusingly similar to a registered trade-mark, or to use the trade-mark in a way that is likely to depreciate the goodwill associated with the trade-mark. It is up to the trade-mark owner to enforce its trade-mark rights.

If a trade-mark is not registered, the owner may still protect the trade-mark, but legal protection will be limited to the geographic region where the trade-mark was used or made known (a registration grants rights across the country). The unregistered owner cannot allege the types of infringement that a registered owner can claim; instead, the unregistered owner must bring an action for passing off, and must establish three things: first, that the public associates a certain degree of goodwill or reputation with the trade-mark; second, that the defendant has made a misrepresentation to the public; and third, that the trade-mark owner has consequently suffered injury. Even if the defendant was using the identical unregistered trade-mark, the trade-mark owner must still prove these three conditions. If the trade-mark had been registered, it would have been sufficient for the trade-mark owner to prove that the identical trade-mark was being used on similar wares or services.

(An aside on orthography: you might note that Americans spell it “trademark", while the British spelling is “trade mark", two words. Why the hyphen in the Canadian spelling? No special reason. When the Trade-marks Act was drafted, a hyphen was inserted, and no one bothered to take it out.)

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Patents

What is a patent?

A patent gives its owner (the patentee) the exclusive right to make, use, or sell the invention claimed in the patent. Anyone who, without permission, makes, uses, or sells in Canada the claimed invention, infringes the patent.

Physically, a patent is a document issued by the government which sets out what the invention is and how you go about making it. The patent also contains a set of claims, which describe that in which the patentee claims to have an exclusive right. To be liable for patent infringement, the infringer must be doing what the claims describe. (Although this sounds simple in principle, patents are not pleasant documents to read. They are usually highly technical and the claims resemble single sentences which run for a paragraph containing very bad grammar; however, drafting them is truly an art form.)

Patents are granted by the government as part of a “bargain” between the inventor and the public. In exchange for the right to prevent other people from using her invention for a certain period of time, the inventor gives to the public all the information needed to make her invention, so that others may engage in research and development built on her work.

What can be protected by patent?

Patents are granted for new and useful inventions, consisting of any art, process, machine, manufacture, or composition of matter, or a new and useful improvement over one of these items. An invention can include techniques or methods, chemical compounds, new uses for chemical compounds, machines, and micro-organisms.
Some types of subject matter are specifically excluded from patents. Matter that is properly protected under other statutes, such as industrial designs, trade-marks, copyright, integrated circuit topographies, and new plant varieties, is excluded. Natural phenomena, scientific principles, and abstract theorems, are not inventions, although they may be newly discovered; a novel application of a phenomenon, principle, or theorem, though, is patentable. Methods of medical treatment are also excluded, although the tools or drugs used in medical treatment are patentable. Higher life forms (i.e., mammals) are also currently excluded, as a result of the Supreme Court’s interpretation of the definition of “invention.”

In order to obtain a patent, the invention must be new, useful, and non-obvious.

New means that the invention must not have been available to the public, anywhere in the world, before the patent application is filed. Outside the United States and Canada, there is effectively a prohibition against obtaining a patent if the invention is shown at all to customers first, for example. In the U.S. and Canada, there is a grace period for disclosures by the inventor or someone who obtained information from the inventor. In that case, a patent application must be filed within one year of disclosing the invention or it will cease to be new.

Useful means that the invention must work. It does not have to work well, but it must at least do what the inventor says it will do.

Non-obvious means that the invention must be inventive. There must be something to the invention that sets it apart from what others have been doing in the relevant field, which would not have occurred to the ordinary skilled worker to do.

Just like a copyright or an industrial design, the patentee or the licensee must enforce their rights against infringers themselves.

How do you get a patent?

Patents do not arise “automatically” like copyright. It is necessary to obtain a patent through a lengthy application process.

The applicant must draft a specification, which includes the disclosure (the part that explains what the invention is and how it works) and the claims (the part that explains what the applicant says are its exclusive rights). This specification, together with a formal request for a patent, is sent to the Patent Office together with an application fee. Unless the applicant specifically requests it, the application essentially lies dormant for 18 months (a confidentiality period). After 18 months, or earlier if the applicant requests it, the application is published so that any member of the public may read it. The application is then examined to determine whether it meets the statutory requirements (stylistic requirements, novelty, non-obviousness, utility) and amendments are made, if necessary. Eventually, the application is either rejected by the Patent Office, or it is allowed and upon payment of a final fee the patent is issued.

On average, this process takes two to three years and costs several thousand dollars (if the applicant hires a patent agent to draft and prosecute the patent application; the applicant can always try to do it him or herself).

Where and for how long is a patent effective?

The exclusive rights granted by a patent now expire 20 years after the date the application was filed. For certain patents that were issued from older applications, the term is the longer of the 20-year term, or 17 years after the date the patent was actually granted.

Patents are territorial. Each country may only issue a patent which is effective within its own jurisdiction. An applicant may apply in as many countries as it chooses, and there are mechanisms in place to facilitate applications in multiple countries at once. However, to obtain a patent in each country, the applicant must satisfy the legal requirements in each country, which may vary.

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Industrial designs

An industrial design registration (referred to in the U.S. as a “design patent") is granted for designs (features of shape, configuration, pattern, or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye) that are applied to an article. These designs can include the carving on a chair back, a fork handle shape, or a running shoe tread, as long as the design is not there only because it serves a useful purpose on the article to which it is applied.

No one but the owner of an industrial design may make, import, sell, rent, or offer for sale or rent, any article for which the design is registered and to which the design is applied, for a maximum of ten years. This protection includes designs that do not “differ substantially” from the registered design, although in determining whether or not a difference is substantial, reference is had to how much the registered design resembles any previously published designs.

Industrial designs do not arise automatically upon creation of the design, as copyright protection does. The Industrial Designs Act requires that a registration must be obtained and renewed after five years in order to claim this type of protection. Also, an industrial design is granted only for novel designs that are distinguishable from the prior art. Contrast this to copyright law, where protection is available for a work so far as it is original to the author. Like copyright, the owner of the industrial design must enforce the rights himself.

Sometimes, the artistic work underlying an industrial design may be protected by copyright, which is a more useful form of protection; industrial designs may be enforced against identical or similar designs that are applied to the same type of article, whereas copyright enforcement is not limited to the same type of article. However, the Copyright Act limits the scope of protection for designs or artistic works that are properly within the realm of industrial designs, in order to avoid unfair duplication or extension of rights under both regimes.

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Neighbouring rights

Usually, copyright protection is given to a work that is created by an author–a book or a script is written, a portrait is painted–but in Canada, protection is also afforded to those people who don’t actually create a work, but make use of an existing work. This protection is referred to as a neighbouring right.

As an example, let’s say that a playwright writes a script and a musician writes an accompanying score. A theatre group performs the play in front of an audience, accompanied by an orchestra playing the score. A performance of the play is taped, then broadcast at a later time to television viewers. The score is also recorded separately as a soundtrack. A proprietary right can arise with respect to each one of these actions.

The script, assuming it is sufficiently original, is protected by copyright. The performance of the play, the performance of the score, and the broadcast of the play, however, arose because of the original script and score. Nevertheless, there are rights associated with each of them.

A discussion of these rights is beyond the scope of this FAQ, but for example, the Copyright Act protects a “performer’s performance", which is the performance of an artistic, dramatic, or musical work, or a recitation or reading of a literary work, even if this performance or reading is not recorded. It does not matter if copyright has expired in the underlying work (the play or the score, for example); the performance is still protected, although other people may perform the play or score as well.

The Act gives the owner of the performer’s performance the right to make any type of recording of the performance or a copy of the recording (referred to as a “fixation"), to communicate the performance to the public by telecommunication, to perform it in public by telecommunication (as long as it is not broadcast by radio waves), to deal in copies of the recorded performance, and to rent out sound recordings of the performance. This is different from the copyright in the underlying literary, musical, or artistic work. A performer’s performance also includes improvisational pieces which were not previously scripted or scored.
There is also specific protection for sound recordings and for communications signals.

The Copyright Act also provides protection for moral rights–an author’s right to integrity in his work. It is an infringement of an author’s moral rights to make any modification to a work that prejudices the honour or reputation of the author; clear examples of this are mutilation or association with a disreputable cause. Moral rights are not common to all countries.

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When copyright overlaps industrial design protection

The Copyright Act provides exceptions for infringement in cases where the work in question strays from copyright to the realm of industrial design.

According to section 64 of the Act, if a design is applied to a “useful article", it is not an infringement of copyright or moral rights in the design or the artistic work from which the design was derived by making the useful article, or by making a drawing or other material reproduction of the article, if the owner of copyright in the artistic work or design, anywhere in the world, authorizes the reproduction the useful article in a quantity of more than fifty.

It is also then not an infringement to do with the reproduced article or other reproduction anything that the copyright owner had the sole right to do with the underlying design or artistic work.

This exception does not apply in the case of graphic or photographic representations applied to the face of an article, trade-marks or labels, material with a woven or knitted pattern, material that is suitable for piece goods or surface coverings, material that is suitable for making wearing apparel, architectural works, representations of real or fictitious beings, events, or places, or articles sold as a set of fifty or less.
Section 64 is an attempt to reduce duplication of intellectual property protection for works that are properly within the scope of industrial design. The works that qualify for this exception, generally, are the sorts of works that would qualify for industrial design protection. Section 64 of the Copyright Act forces the author to choose the proper form of protection for her work. Otherwise, it would be possible for an author to unfairly extend her design protection (which lasts only 10 years) for an indefinite period of time (the term of the copyright).

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By implied licence

In some situations, the relationship between the copyright owner and the user results in implicit permission being granted to the user for certain activities that normally might be considered infringement. Both the copyright owner and the user must be aware of this practice or relationship. For example, a designer who publishes a pattern for a jacket might own copyright in the original jacket for which the pattern was developed, but by publishing the pattern, implicitly gives permission to the user to reproduce the jacket.

However, simply because permission may be implied for one activity does not mean that permission was also granted for another activity. A user of the pattern might be impliedly permitted to make one, two, or three copies of the jacket; but this implied permission probably does not extend to selling these copies of the jacket in a commercial enterprise. How far this implied permission goes will depend on the facts of each case.

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By seeking permission beforehand for non-fair dealing uses

If a use of a copyrighted work without prior consent would result in infringement, then the user may always seek permission for this use. This permission must be sought from the copyright owner or the person who has the authority to give this permission. In some situations, it may be the author or an agent. In the case of a published work, such as a book, journal, or article, it may be the publisher, or a collective agency representing the publisher.

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By engaging in fair dealing

It is not copyright infringement to reproduce part of a work for one of the following purposes:

research or private study
news reporting
criticism or review

These purposes are described in sections 29, 29.1, and 29.2 of the Copyright Act and are collectively referred to as fair dealing.

Research or private study is restricted to the individual user. A user may be permitted to make a working copy of a document, but that copy cannot be used for anything else.

For the purposes of news reporting or criticism or review, the source of the work must be given, and, where possible, the name of the author must be given.

Not only must the purpose of the copying be one of the three listed above, but the amount taken in the copying must be fair as well. One cannot reproduce the entire contents of a book or a pattern, for example, and claim an exception for criticism or review because comments are interspersed throughout the copied text.

Under U.S. copyright law, there are exceptions to copyright infringement called “fair use". U.S. fair use generally thought to be more generous to users than Canadian fair dealing; for example, under fair use, it is permissible under some circumstances to reproduce a copyrighted work for the purpose of parody. No such parody exception is recognized under Canadian law, although a parody may, depending on the facts, be considered a fair dealing. Therefore, if a use is permissible in the United States, it does not follow that this same use would be permissible in Canada.

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By not copying a substantial part of the work

The public has the right to use a copyrighted work, as long as they do not do not infringe the copyright owner’s rights. Thus, permissible uses include:

reading a literary work (because a copy is not made)
using the work to find primary sources of information (for example, using a history textbook to find references to a specific topic, so that you can write your own work on that subject)
making something that written instructions instruct you to do (although there are limits on what you can do with what you made; see, for example, the answer to this question)

No prior permission from the copyright owner is required for any of these uses (this is by no means an exhaustive list).

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What kind of copying is considered to be infringement?

For the purposes of infringement, it is not necessary for the reproduction to be direct and obvious, like photocopying. The reproduction may be indirect, or from memory, or in another form.

For example, let’s say an artist paints an original floral design. This painting, being an artistic work and original, is protected by copyright. A T-shirt vendor sees the painting, and then creates a pretty good imitation and prints them on T-shirts. This is infringement; the vendor had access to the painting, and although the painting was not reproduced exactly, the T-shirt design sufficiently resembles the painting to be an infringement.

On the other hand, if the T-shirt vendor only imitated one detail from the painting, it may or may not be infringement depending on whether it was considered to be a “substantial part” of the copyrighted work. If the artist’s style could be recognized in the detail, though, it may be considered to be infringement.

Infringement can be unconscious and unintentional, but it is still considered infringement. It’s possible to see a painting, or read a poem, then later reproduce a substantial part of this painting or poem from memory without realizing or remembering the true source. This is still infringement because intention is not relevant in a civil copyright lawsuit; it is enough that the copyright owner can prove access and the copying of a substantial part.

It is also infringement to sell or rent out copies of works that you knew, or should have known, were protected by copyright, even though the copies were not made by you personally.

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What is infringement?

Anyone who carries out one of the acts listed in section 3(1) of the Copyright Act without the permission of the copyright owner is infringing copyright. There is still infringement even if the copy is not an exact reproduction, but is instead only a colourable imitation of the copyrighted work.

In terms of evidence, the copyright owner seeking to prove infringement must show that (1) the infringer had access to the copyrighted work and (2) at least a substantial part was copied. If the infringer didn’t have access to the work directly or indirectly, logically, it could not have been copied. If the infringer did not reproduce at least a substantial part of the work, then there cannot be infringement, because the Copyright Act gives the copyright owner the right to reproduce the whole work, or any substantial part of the work.

In determining what is substantial, the copied part is measured not just quantitatively (one page out of a book? ten pages? an entire chapter?), but also qualitatively (how important is that part to the rest of the work?).

This means that if you were to photocopy an entire novel, you would likely be infringing the copyright in that book; but if you copied only a phrase, this would probably not be a “substantial part” of the work and therefore you would not be infringing copyright.

If you merely quoted a short passage for the purpose of commentary, and you indicated the source of the passage, this would not be infringement either.

An infringer may be liable for damages and lost profits, and may be subject to an injunction, if successfully sued by the copyright owner or a licensee of the copyright owner. If an infringer is prosecuted for copyright infringement, the penalties include a wide range of fines and imprisonment.

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What kinds of rights are granted by the Copyright Act?

The Copyright Act gives the owner of copyright in a work the exclusive right to:

produce or reproduce the work or any substantial part of the work in any material form;
perform the work or any substantial part of the work in public;
translate a work;
publish the work or any substantial part of the work (if the work is unpublished); and
authorize other people to do these things as well.

Section 3(1) of the Act lists some specific examples of these rights, but it is not an exhaustive list. Some of these specific rights are mentioned in here. Other rights, called neighbouring rights, are also granted by the Copyright Act. These are discussed here.

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Who owns the copyright in a work?

The default answer is that the owner of copyright in a work is the author of that work. However, there are circumstances where another person or entity who is not the author may own the copyright:

The author may assign (i.e. give) his or her copyright to someone else.
An agreement or contract between the author and another person or company may state that copyright in the work would be owned by that other person or company. This agreement could state that after a certain period elapses, copyright ownership would return to the original author (this might arise in a publishing agreement)
Copyright may belong to the author’s employer.

The nature of an employment relationship affects ownership of copyright. For example, an employee who creates a work in the course of her duties probably would not own copyright in the work, although she would be the author. But a person who is commissioned to make a particular work and is allowed to use his own skill and judgment in its creation–for example, an artist commissioned to produce a sculpture–would own the copyright in the work, unless there was an agreement to the contrary.

Whoever the copyright owner is, she may assign or license some or all of her rights under the Copyright Act to another person. Section 13 of the Copyright Act states that an agreement to assign or license a right must be in writing.

In an assignment, the right is transferred (for example, sold) to the other person. This other person becomes the copyright owner, and the previous copyright owner does not retain that right anymore. In a licence, the copyright owner (the licensor) remains the copyright owner, but permits the other person (the licensee) to carry out an activity, on an exclusive, sole, or a non-exclusive basis. If the arrangement is exclusive, the licensor has agreed not to give a licence to anyone else and that only the licensee can exploit those rights (even to the exclusion of the licensor); if the arrangement is a sole licence, then the licensor has agreed not to give a licence to anyone else; and if the arrangement is non-exclusive, the licensor can license another person.

The copyright owner may parcel off her rights to different assignees or licensees. Those rights, however, may revert back to the author’s heirs after a certain period of time after the author’s death. For example, the author of a popular comic book series might own copyright in the books and pictures of the characters in the books. The author could assign (sell) the movie rights to a production company, and license a manufacturer to make toys. This author would no longer be able to stop a third person from converting his comic books into a movie without permission, because that particular right was assigned to the production company (so it would be the production company’s responsibility to stop such infringers). However, the author can still sue a third person for making toys based on his characters without permission.

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How long does copyright protection last?

Generally, in Canada the term of copyright protection expires 50 years from the end of the calendar year of the author’s death ("life plus fifty"). The term of copyright protection varies from country to country.

There are some modifications to this general rule:

If more than one person authored the work in question, then the “life plus fifty” rule is used in reference to the author who dies last. However, if one of the authors is a national of a non-NAFTA country, and his country grants a shorter term of copyright protection, then he is not entitled to claim the longer, Canadian term of protection.
If the work in question is anonymous, then the term expires on the earlier of (a) 50 years from the end of the calendar year of the first publication of the work, or (b) 75 years from the end of the calendar year of the making of the work. If the work ceases to be anonymous, then the general rule (life plus fifty) applies.
If copyright in the work is owned by the Crown, then the term of copyright expires 50 years from the end of the calendar year of first publication of the work.
If the work in question is a cinematographic work without dramatic character, then the term of copyright expires 50 years from the end of calendar year of first publication of the work.
In the case of a photograph, if the owner of the initial negative or photograph at the time it was made is a person (not a corporation), the owner is the author and the term of copyright follows the life plus fifty rule. But if the work is a photograph, and the owner of the initial negative or photograph at the time it was made was a corporation, then it is presumed that the corporation is the author and the term of copyright expires 50 years from the end of the calendar year when the initial negative or photograph was made. But, if the majority shareholder of the corporation is the person who would be the author under normal circumstances (glossing over messy wording here), then the term of copyright follows the (person’s) life plus fifty rule.
If the work in question was unpublished as of the author’s death, and the author died before 1949, then the work entered the public domain on January 1, 2004, whether published or not. If the author died after December 31, 1948 but before January 1, 1999, then the work would enter the public domain after 2048. If the author died in 1999 or later, then the copyright would expire fifty years after the year of the author’s death. (This set of rules is complicated because it was designed to ease the transition between the “perpetual” copyright granted to the unpublished works of deceased authors prior to 1999. As a side note, the heirs of Lucy Maud Montgomery, author of the popular Anne of Green Gables series, were among those who lobbied against the discontinuation of perpetual copyright for unpublished works. However, the result of their lobbying efforts, an amendment that would have extended the term of copyright for posthumous works, died on the order paper as a result of the change in government in 2004.)

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Where does copyright apply?

Any country can only grant copyright protection within its borders. However, most countries are party to at least one international treaty which gives copyright owners in one country access to copyright protection in other countries. As long as a work is created by an author who is a citizen of, or normally resident in, another country which is a signatory to one of these treaties, then it is also protected by copyright in Canada.

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What can be protected by copyright?

There are three requirements that must be met before something can be protected by copyright: first, it must be appropriate subject matter; second, it must be sufficiently original; and third, the author or maker must have citizenship or residence in a treaty country.

Subject matter

The types of subject matter eligible for copyright protection are listed in section 5(1) of the Copyright Act:

literary works
dramatic works
musical works
artistic works

These types of works are generally defined in the Copyright Act, and on occasion courts have had an opportunity to further refine these definitions.

A “literary work” generally refers expressions in print or in writing. It includes tables, computer programs, and compilations of literary works. Therefore, it includes written or printed knitting instructions.

A “dramatic work” includes any piece for recitation, choreographic work or mime, where the scenic arrangement or the form of acting is fixed in writing; any cinematographic work; and any compilation of dramatic works.

A “musical work” means any work of music or musical composition, with or without words, including any compilation of works of music or musical composition.

An “artistic work” includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works.

What is meant by “artistic", however, is not completely resolved. If a work can be defined as one of the types listed above (like a photograph or a drawing), then a court would likely consider it to be an artistic work. However, sometimes the courts have required that a work possess some type of aesthetic appeal or that the reason for its creation must be for providing some kind of aesthetic enjoyment.

The definition of a “work of artistic craftsmanship", which is one of the types of artistic works listed above, also is not absolutely settled in case law. It can include a chair or a quilt, but probably not mass-produced items. One view is that for a work to be of artistic craftsmanship, it must have been produced using the special skill and knowledge of a type employed by an artisan. An article of clothing (such as a knitted garment), therefore, might be considered to be a work of artistic craftsmanship, and therefore an artistic work.

Whatever it is that is protected by copyright, it must be a form of expression, not merely an idea. For example, if you tell your friends about a marvellous idea you had, you cannot use copyright law to prevent anyone from exploiting that idea themselves. A technique is not protectable by copyright, because it does not fall into one of the classes of works which is protected. It is not the expression of an idea; rather, it is a concept of carrying out an action. However, if instructions for working the technique were reduced to writing or videotaped, the written instructions and the cinematographic work may be protected by copyright.

Originality

Section 5(1) of the Copyright Act specifies that copyright subsists in every “original” literary, dramatic, musical and artistic work. “Original” is not the same as “new” or “unique”. It is not necessary for a work to be unique and the first of its kind in the world to be an original work protected by copyright. It is enough that the author(s) came up with the work himself (or themselves) and did not copy it.

If two people independently write the same poem or paint the same picture, then they may both have copyright in the work. If two people write different stories based on the same theme of star-crossed lovers whose feuding families cause them to keep their marriage secret, they may both have copyright in their own stories.

The best definition of an “original” in Canadian law is one that requires skill, judgment, and labour to create. There must be some element of human input into the creation of a work, which is beyond mere routine task. Trivial works, such as titles, brief instructions, advertising phrases, or minor changes to a pre-existing work, are generally not original enough to merit copyright on their own.

There are no bright dividing lines between what is “original” and what is not. It would be unfair to extend copyright protection to the point that an author’s copyright would capture any work that was based on his own. After all, it is possible to be inspired by another person’s work and follow similar themes without copying the original expression. Therefore, originality is bound by the resources commonly available to others creating similar works. For example, the use of stripes, leaves, or fruit designs on a garment is merely a concept and cannot be protected. These features are commonly available to others designing garments. However, the particular arrangement of the strips, leaves, or fruit designs on a garment may be sufficiently original to merit copyright protection.

Citizenship or residence

The Copyright Act also specifies that the author of the work, at the date the work was created, must be either:

a citizen,
a subject, or
normally resident in a “treaty country".

A “treaty country” is a country that is a member of or party to the Berne Convention, the World Trade Organization, or the Universal Copyright Convention. Both Canada and the United States are parties or members to all three.

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Where does copyright protection come from?

Copyright protection arises automatically once a work that meets the statutory requirements is created (these statutory requirements are described in this section of copyright basics).

There is no need to register a copyright, although there are distinct advantages to registration.

Of all the forms of intellectual property protection, automatic protection of qualifying works is unique
to copyright. Patents and industrial designs require registration. A trade-mark does not have to be registered, but if it is not, enforcement becomes more difficult. Confidential information (or a trade secret) does not require registration, but in order to legally protect a trade secret, it must first be treated confidentially.

Canadian copyright law is federal statutory law. Copyright protection arises from an act of Parliament, the Copyright Act. Parliament has exclusive jurisdiction over copyright; this means that provincial legislatures cannot enact their own copyright laws. There is no “common law” copyright.

The Act is available from the Department of Justice here.

(A web-browsable copy of the U.S. Copyright Act is available here.)

The Copyright Act, like all acts of a legislature, is interpreted by the courts and administrative bodies who have jurisdiction over this area of law. In Canada, all courts have jurisdiction to decide issues of copyright law (this includes the courts of each province and the Federal Court of Canada). There is also an administrative tribunal called the Copyright Board, which fixes the royalty rates collected by various copyright collective societies for the public performance, broadcast, reproduction, or other distribution of works in the societies’ repertoires.

(I don’t mean to get historical here. If you are interested in the development of copyright laws, try a copyright textbook or do a search on the net for “Statute of Anne".)

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What does copyright do?

In a nutshell, copyright law is about giving authors (creators) control over the copying of their work. This control is achieved by giving authors of copyrighted works the exclusive right to carry out certain acts, and the exclusive right to authorize others to carry out these acts. Such acts include, but are not limited to:

making reproductions of a work
making reproductions of substantial parts of a work
translating a work
adapting a work to another form (e.g. adapting a novel for a screenplay)
communicating a work by telecommunication to the public
broadcasting a work
publishing a work for the first time

There are other rights that are specifically listed in the Copyright Act, but for our purposes, these are the essential ones.

To balance the power given to authors, copyright law also assures that certain uses by the public are permitted in the interest of cultural development.

last updated 041220 and filed under

copyright for crafters

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